Peterson v. North Dakota University System

• Decision Date: 13 April 2004
• Docket Number: No. 20030249.,20030249.
• Citation: 678 N.W.2d 163,2004 ND 82
• Parties: Sandra PETERSON, Plaintiff and Appellant v. NORTH DAKOTA UNIVERSITY SYSTEM, and Bismarck State College, Defendants and Appellees.
• Court: North Dakota Supreme Court

678 N.W.2d 163

2004 ND 82

Sandra PETERSON, Plaintiff and Appellant v. NORTH DAKOTA UNIVERSITY SYSTEM, and Bismarck State College, Defendants and Appellees.

No. 20030249.

Supreme Court of North Dakota.

April 13, 2004.

Charles "Casey" L. Chapman, Chapman & Chapman, Bismarck, ND, for plaintiff and appellant.

Tag C. Anderson, Assistant Attorney General, Bismarck, ND, for defendants and appellees.

VANDE WALLE, Chief Justice.

[¶ 1] Sandra Peterson appealed from summary judgment dismissing with prejudice her complaint against the North Dakota University System ("NDUS") and Bismarck State College ("BSC"). We affirm.

I

[¶ 2] Peterson was a tenured faculty member in the commercial art department at BSC. Under North Dakota State Board of Higher Education Policy Manual ("policy manual") section 605.3(8), BSC notified Peterson in April 1999 of its intent to dismiss her for cause, alleging she violated a State Board of Higher Education ("Board") policy and federal law by disclosing confidential information about a student to a classroom full of students. BSC directed Peterson to apologize for the violation. Her apology was considered inappropriate, and BSC claimed this constituted a substantial and manifest neglect of her duties. Through her attorney, Peterson challenged the sufficiency of the notice to dismiss her. In May 1999, Peterson received an amended notice of BSC's intent to dismiss her containing the original allegations and several new ones. The new allegations included neglect of teaching responsibilities for ending a class one month early and failing to appropriately clean up "dark room and/or lab areas," demonstrated incompetence in teaching for continually displaying an inappropriate pattern of behavior while assisting students, and demonstrated incompetence in teaching for indications received from the BSC Commercial Art Advisory Committee that it would not sign the renewal form to continue the BSC Commercial Art Program because of concerns regarding Peterson's abilities as an instructor.

[¶ 3] In July 1999, BSC President Donna Thigpen dismissed Peterson for cause. Peterson requested reconsideration, under section 605.3(8) of the policy manual, of her dismissal by a BSC faculty committee, which concluded she should not be dismissed. President Thigpen disagreed with the committee's decision and affirmed the decision dismissing Peterson for cause. Peterson requested reconsideration, as specified by section 605.4 of the policy manual, of this decision by the BSC Standing Committee on Faculty Rights ("Standing Committee"), which conducted a trial-like hearing in February 2000 and concluded BSC did not establish clear and convincing evidence that there was adequate cause to dismiss Peterson. President Thigpen reviewed the evidence presented at the hearing, and in a March 2000 letter, affirmed her prior decision to dismiss Peterson.

[¶ 4] Peterson's final appeal was to the Board, which requested an administrative law judge ("ALJ") from the Office of Administrative Hearings to review the record and make recommended findings of fact and conclusions of law. The ALJ concluded BSC proved by clear and convincing evidence that there was adequate cause to dismiss Peterson and recommended affirming her dismissal. In January 2001, the Board adopted the ALJ's recommendations and affirmed Peterson's dismissal.

[¶ 5] In July 2001, Peterson filed suit against NDUS and BSC (collectively "the State") in district court. She alleged breach of her employment contract, wrongful discharge, and civil conspiracy. The State moved for summary judgment. The district court granted the motion, finding Peterson failed to raise any genuine and material issues of fact regarding whether the Board's decision to dismiss her was objectively reasonable and made in good faith, and any genuine or material issue of fact to support her breach of contract, wrongful discharge, and conspiracy claims.

II

[¶ 6] Whether the trial court properly granted summary judgment is a question of law which we review de novo on the entire record. Iglehart v. Iglehart, 2003 ND 154, ¶ 9, 670 N.W.2d 343.

[S]ummary judgment ... is a procedural device under N.D.R.Civ.P. 56 for prompt and expeditious disposition of a controversy without a trial if either party is entitled to judgment as a matter of law, and if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving disputed facts would not alter the result. On appeal, we review the evidence in the light most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which reasonably can be drawn from the evidence. The party moving for summary judgment bears the burden of establishing there is no genuine issue of material fact and that, under applicable principles of substantive law, he is entitled to judgment as a matter of law.

Green v. Mid Dakota Clinic, 2004 ND 12, ¶ 5, 673 N.W.2d 257 (citations omitted).

[¶ 7] The State Board of Higher Education was created to control and administer several state educational institutions, known as the North Dakota University System. N.D. Const. art. VIII, § 6; N.D.C.C. § 15-10-01.3. Bismarck State College is part of the North Dakota University System. N.D.C.C. § 15-10-01. The Board has all the powers necessary to control and manage the institutions of the NDUS, including removing professors from employment. N.D.C.C. § 15-10-17. Regulations adopted by the Board as part of its policy manual govern termination of faculty members and "are part of the employment contract between the institution and faculty member." Hom v. State, 459 N.W.2d 823, 824 (N.D.1990).

[¶ 8] Peterson was a full-time tenured faculty member at BSC. "Tenured appointments recognize a right, subject to Board policy, to continuous academic year employment in an academic unit or program area as defined by an institution and stated on the contract." North Dakota State Board of Higher Education Policy Manual, Academic Freedom and Tenure; Academic Appointments, § 605.1(4)(b) (2001). "Tenure in the academic community commonly refers to a status granted, usually after a probationary period, which protects a teacher from dismissal except for serious misconduct, incompetence, financial exigency, or change in institutional programs. The primary function of tenure is the preservation of academic freedom." Stensrud v. Mayville State College, 368 N.W.2d 519, 521 n. 1 (N.D.1985) (citations omitted).

[¶ 9] At the time of Peterson's dismissal, section 605.3(8) (1996) of the policy manual allowed dismissal of a tenured faculty member for cause. It defined "Adequate Cause" as:

(a) demonstrated incompetence or dishonesty in teaching, research, or other professional activity related to institutional responsibilities, (b) continued or repeated unsatisfactory performance evaluations and failure to respond in a satisfactory manner to a recommended plan for improvement, (c) substantial and manifest neglect of duty, (d) conduct which substantially impairs the individual's fulfillment of his or her institutional responsibilities or the institutional responsibilities of others, (e) a physical or mental inability to perform assigned duties, provided that such action is consistent with laws prohibiting discrimination based upon disability, or (f) significant or continued violations of Board policy or institutional policy, provided that for violations of institutional policy the faculty member must have been notified in advance in writing by the institution's chief executive that violation would constitute grounds for dismissal, or the institutional policy must have provided specifically for dismissal as a sanction.

Section 605.4 of the policy manual allowed faculty members to appeal adverse decisions to the Standing Committee. In appeals to the Standing Committee involving dismissals for cause, the institution was required to prove that grounds for its actions existed by clear and convincing evidence. North Dakota State Board of Higher Education Policy Manual, Hearings and Appeals, § 605.4(8) (1998). The Standing Committee was required to report its findings, conclusions, and recommendations to the institution's chief executive, who had to make a decision and notify the Standing Committee and the faculty member of the result. Id. § 605.4(11). At the time of Peterson's dismissal, the chief executive's decision was considered final except, in cases involving dismissals for cause, a faculty member could appeal the chief executive's decision to the Board. Id. § 605.4(12).¹

[¶ 10] Peterson contends her employment contract was breached because BSC did not prove, by clear and convincing evidence, that there was adequate cause to dismiss her.

A.

[¶ 11] As an initial matter, we must determine the appropriate standard of judicial review for substantive determinations by the Board. The State asks us to conclude that Peterson should be required to petition for a writ of mandamus seeking relief from the Board's decision. Alternatively, it contends the standard from Thompson v. Associated Potato Growers, Inc., 2000 ND 95, 610 N.W.2d 53, should control judicial review of Peterson's claims. Peterson seeks a de novo determination whether her contract was breached, or she asserts that if Thompson is applicable, summary judgment was inappropriate because the Board contractually promised her greater rights than Thompson provides and a jury should decide whether the Board's decision was objectively reasonable and made in good faith.

[¶ 12] We disagree with the State's assertion that a writ of mandamus is the proper avenue for Peterson to proceed with her claim. The State did not present this argument to the trial court and did not address it in its brief. Unlike decisions not to renew the contracts of elementary and secondary teachers, there is no statutory guidance regarding a decision by the Board to dismiss a faculty member of an...